About the meaning of notion «national law» in the light of legal borrowing problem
Journal Title: Правова держава. Щорічник наукових праць (Pravova derzhava) - Year 2016, Vol 27, Issue
Abstract
Possibility of identification of national law is considered as derivative for the under- standing of legal comparison as a correlation of legal systems. The presentation of borrow- ings in law as the question of its individuality allowed constituting the epistemological issue of legal argumentation nature. There are two traditional interpretations of legal comparison as mimesis. The first interpretation is a cultural thesis according of which law is the form of expression of outlaw phenomena (e.g. national culture). The second interpretation under- stands of law as the kind of technical devices. One is free transferable across the border of national legal systems. Both relativistic and universalistic understandings of legal comparison are rejected. The third meaning of legal comparison is stated. Such meaning is not identification of national law through of universal and unchanged sense. Transformation of legal mimesis sense is the pro- cedural characteristic of legal identity. Procedural meaning of legal mimesis is universalize of creation of new senses of law ability. Understanding identity of national law as its ability of fill itself of different content is proposed.
Authors and Affiliations
Anastasiia Saparova
Keywords
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